Allahabad High Court
M/S Star Track Terminals Pvt. Ltd. vs State Of U.P. And 4 Others on 27 January, 2020
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 Case :- APPLICATION U/S 482 No. - 1523 of 2020 Applicant :- M/S Star Track Terminals Pvt. Ltd.
Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Prateek Dawar Counsel for Opposite Party :- G.A. Hon'ble Naheed Ara Moonis,J The instant petition has been filed with a prayer to quash the entire proceedings pursuant to the order dated 06.9.2019 passed by the Additional Chief Judidical Magistrate, Court No. 8, Ghaziabad in Case No. 332 of 2019 (Jasveer Singh Vs. M/s Cogo Freight Pvt. Ltd.) whereby the applicant has been summoned to face the trial under Sections 420 and 406 IPC.
Heard Shri Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Shri Prateek Dawar, learned counsel for the applicant and learned Additional Government Advocate representing the State.
The brief facts giving rise to the present application are that an application under Section 156(3) of the Code of Criminal Procedure was moved by opposite party No. 2 on 10.1.2019 impleading (i) M/s Cogo Freight Private Limited, (ii) M/s All Track Logistic Private Limited, (iii) M/s Maersk Line India Private LImited and (iv) M/s Star Track Terminals Private Limited through their Directors (hereinafter referred to as "A-1, A-2, A-3 and A-4 respectively for the sake of brevity) stating therein that opposite party No. 2, the complainant is running a business of imports and exports since 2017 in the name of style of M/s Orbitron Power Private Limited, situated at Main Chirori Road, Ghaziabad and engaged in the manufacture of Inverter and Battery. M/s Cogo Freight Private Limited acts as forwarder of the consignment of the goods imported by the complainant. On 22.10.2018, M/s Cogo Freight Private Limited had sent an invoice for the payment of Rs. 1,46,244.90/-. The complaint immediately sent the aforesaid amount on 24.10.2018 through ICICI bank. After receipt of the amount, an employee of A-1 Adnan Shah apprised the complainant that his goods will be delivered in 2-3 days. However, after three days, when the complainant contacted the employee of A-1, he adopted delay dallying tactics. When the complainant approached the custom officials of Dadri Port, they disclosed that it was not his fault, rather due to the fault of the company from where the goods is to be delivered to him or his agent, the goods could not be released. When the complainant again contacted the employee of A-1, he received a mail on 13.11.2018 from A-1 that he had to pay Rs. 40,000/- as additional amount as miscellanous charge. It was replied by the complainant that when initially it was informed that no additional charge is to be paid by him as agreed between A-1 and the complainant, then again on the same day, the complainant received a mail from Adnan Shah, the employee of A-1 that he has to pay Rs. 4,00,020/- as container charge and Rs. 1,32,286/- as warehouse charge. When the complainant enquired as to why they are demanding such charges, he did not receive any satisfactory reply. Thereafter, Gandotra Nareen, an employee of M/s Maersk Line India Private Limited, A-3, informed the complainant through mail on 29.11.2018 that they shall reduce 20% of the total amount, the said mail was also sent by A-3 to A-1. Despite this A-1 did not pay any heed when there was no fault on the part of the complainant and A-1 was responsible for committing delay in delivering the goods. On 30.112018, A-1 again sent a mail to the complainant informing him to collect his goods from the custom and whatever charges are levied, they are on daily basis, but the complainant on 30.11.2018 enquired from A-1 that when it was agreed that no extra charge will be paid and it was also assured by A-1 that 20 days time was fixed for delivery of the goods and in this regard, the employee of A-2 and A-3 had assured the complainant, but they started pressuring to deposite the additional charge. When all efforts went in vain, the complainant found himself to be cheated by the accused persons and hence application was moved before the SSP, Ghaziabad on 20.12.2018 for taking appropriate action against the aforesaid accused persons. Beside this, a notice was also sent through his counsel on 21.12.2018 to all the accused persons, but neither any reply was given nor they returned the money, hence an application under Section 156(3) was moved for the offences punishable under Sections 406, 420, 467, 468, 471, 120-B IPC. The said application under Section 156(3) Cr.P.C. was supported by an affidavit along with the list of documents, which are 14 in number. The said application was treated as complaint and accordingly the statements of the complainant under Section 200 and his witnesses under Section 202 Cr.P.C were recorded.
The court below found that prima facie case is made out against the accused persons and hence by order dated 06.09.2019 summoned (i) M/s Cogo Freight Private Limited, (ii) M/s All Track Logistic Private Limited, (iii) M/s Maersk Line India Private LImited and (iv) M/s Star Track Terminals Private Limited through their Directors to face the trial under Sections 406 and 420 IPC.
As the accused persons have not appeared on the date fixed, i.e. 21.10.2019, bailable warrant was issued against them. However, in the meantime, on 27.11.2019, one of the accused namely Sudeep, representing the applicant's company appeared before the court concerned and applied for bail, but his bail application was rejected and he was sent to jail.
Learned Senior Counsel appearing on behalf of the applicant has fervently urged that the learned court below has committed manifest error in proceeding against the applicant, who was not at all involved in any such offence as alleged in the complaint filed by opposite party No. 2. Neither any offence under Section 420 IPC, which relates to dishonestly inducing the persons deceied to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security is made out nor any offence under Sectin 406 IPC relating to dishonest intention, misappropriation or conversion to his own use to the detrimental of the persons entrusted it, is made out, as such learned court below passed the summoning order in a routine manner when there is no specific allegations against the applicant to hold it liable for any offence under Section 420 and 406 IPC.
Learned Senior Counsel further submits that the applicant is a company engaged in the business of operating, managing, using, renting or otherwise acquiring container terminals and container freight stations as well as providing facilities and services for container terminal operations. Therefore, the transaction in respect of the forwarding goods imported by the complainant is only between the complainant and M/s Cogo Freight Pvt. Ltd, A-1 and M/s All Track Logistic Private Limited, A-2 acted as clearing house agent of the complainant only and M/s All Track Logistic Pvt. Ltd had approached the applicant for confirmation of ground rent and handling charges. The consignment of the complainant was transported to M/s Maersk Line India Pvt. Ltd, A-3. The complainant was well informed by the official of A-1 that the goods/consignment will arrive within 2-3 days and when the complainant did not receive the consignment within the stipulated period, he was informed about the fault on the part of A-1 that the consignment could not be release to him. Therefore, the complainant ought to have redress his grievance from A-1 with respect of non-release of the consignment and about detention charges. The complainant was also informed in this regard by the applicant, A-4 that consignment is lying in the port of the applicant and as the detention charges were not paid, the applicant had issued notice under Section 48 of the Custom Act, 1962 to the complainant vide letter dated 20.2.2019 and 02.4.2019 to make the payment as the applicant was engaged by M/s All Track Logistic Private Limited,A-2 who was the clearing agent of the complainant. As the said notices were returned undelivered, the goods were lying in the port, as the applicant, A-4 was custodian of the goods on behalf of the Department of Customs and no payment for release of the same has been remitted from A-3, M/s Maersk Line India Private Lmited to the applicant. The complainant's company never approached the applicant, A-4 for the release of his consignment directedly in spite of notices having been given to him in accordance with Customs Act. Thus, the applicant, A-4 had no role to play in the transaction between the complainant and the A1 and A-2. Even there is no whisper in respect of any complaint against the applicant in the complaint or in the statement of the complainant and the witnesses, as such the applicant, A-4 cannot be made responsible for any act of the other accused persons. The dispute is purely civil in nature. No specific role has been attributed to the applicant, whose case is distinguishable from others. The complainant has not filed the complaint with clean hand and concealed the material facts wilfully as there was no agreement of any kind with the applicant, A-4 and hence summoning order passed against the applicant, A-4 is nothing but an abuse of process of law and is liable to be quashed.
Per contra, learned Additional Government Advocate has contended that the company has been made party without impleading its Director when all the other Directors of the company, who have been summoned have been arrayed as opposite party in the complaint filed by the opposite party No. 2. All the companies have been arrayed as respondents in the present petition. Against the deponent of this case bailable warrant was issued pursuant to the summoning order, who surrendered before the court concerned and his bail has been rejected and there is no whisper in the instant petition whether he has been released on bail or not. At the initial stage, only this much is to be seen as to whether any prima facie case has been made against the persons arrayed in the complaint and at this stage innocence of the applicant alone cannot be deciphered.
Having considered the submissions advanced by the learned counsel for the applicant and learned Additional Government Advocate and from perusal of the complaint dated 10.1.2019 filed by the complainant, it appears that the applicant, A-4 has forwarded a letter to the complainant for clearance of the goods. The notice indicated that goods had already arrived at the custom on 11.10.2018. There is no indication that prior to that any information was given by the applicant to opposite party No. 2 with respect to the clearance of the goods within the stipulated period and in the said notice dated 20.2.2019, which was given after the filing of the complaint, it was mentioned therein that on failure to clear the cargo within stipulated period, i.e. 30 days, the goods would be sold. Thereafter another reminder was sent by the applicant on 2.4.2019 to clear the cargo within ten days from the date of issuance of notice, failing which cargo would be put to auction. In that notice also it was mentioned that goods were lying since 11.10.2018, the copy of the said notices were also sent to M/s Maersk Line India Private Limited, who has arrayed as A-3 by the complainant. Only when the complaint was filed impleading all the accused persons including the applicant, for the first time, the said notice was sent to the complainant, prior to that no notice was given to the complainant and hence, it cannot be said that the goods have not been detained by the applicant. So far as the dishonesty and fraudulent intention is concerned with respect to the delivery of goods, it cannot be looked into mathmatical extitude whether the offence alleged is made out or not. Even if some other offence is made out different from what has been alleged, the proceeding cannot be quashed at the primitive stage.
Hon'ble Supreme Court in the case of Chandra Deo Singh Vs. Prokash Chandra Bose, (1964) 1 SCR 639, has held that "where there was prima facie evidence, the Magistrate was bound to issue process and even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by an appropriate forum at an appropriate stage. It was further held that the issue of process can be refused only when the Magistrate finds that the evidence led by the complainant is self contradictory or intrinsically untrustworthy."
In Kewal Krishan Vs. Suraj Bhan (1980) Supp SCC 499, Hon'ble Supreme Court examined the scheme of Sections 202 to 204 Cr.P.C and held:
"At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges."
Hon'ble Apex Court in S.M. Dutta Vs. State of Gujarat, 2001(43) ACC 658, observed that practice of scuttling criminal proceeding at the initial stage was improper and the High Court may not interfere except in rarest cases where the summoning amounted to abuse of process of law.
At the initial stage of summoning, only prima facie case is to be seen. Therefore, looking into the prima facie evidence on record, it cannot be said that no offence is made out against the applicant. The legal position is well settled that if an offence is disclosed, the Courts normally will not interfere. So far as the inherent powers of the Court are concerned, it has been reiterated by Hon'ble Supreme Court in catena of decisions that while exercising its inherent powers under Section 482 Cr.P.C., the Court would not embark upon an enquiry whether the allegations in the complaint are to be established by the evidence or not. High Court would have to proceed entirely on the basis of allegations made in the complaint or the documents accompanying the same per se, it has no jurisdiction to examine the correctness or otherwise of the allegations. From the material available on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicants. All the submissions made at the Bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court under section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the case of R.P. Kapoor Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1991 (28) ACC 111 (SC), State of Bihar Vs. P.P. Sharma, 1991 (Suppl) ACC 493 and M/s Zandu Pharmaceutical Works Limited Vs. Mohd Sharaful Haque and others, 2005 (51) ACC 188(SC).
Further the disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got the right of discharge under the relevant provisions of Code of Criminal Procedure, as the case may be, through a proper application for the said purpose and he is free to raise all the submissions in the said discharge application before the trial court. After considering the material and the documents, if the Magistrate is satisfied, he may refrain from framing charge under Section 406 or 420 IPC at the appropriate stage.
In the event, the prosecution is found to be malicious, the remedy is available to the applicant to initiate proceeding for compensation under Section 250 of the Code.
In view of what has been indicated herein above, I find that the impugned order does not suffer from any illegality or infirmity requiring any interference by this court. Accordingly, application under section 482 Cr.P.C. is rejected.
Dated: 27.1.2020 Ishrat